On December 11, 2014, a three-member majority of the National Labor Relations Board significantly limited how employers may control employee use of employer-owned email systems. In Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014), the majority overturned the Bush-era precedent that "employees have no statutory right to use the[ir] Employer's e-mail system for Section 7 purposes." Register Guard, 351 NLRB 1110 (2007). The Board "adopt[ed] a presumption that employees who have been given access to the employer's email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions." Although the majority's holding was confined to employee use of email systems, the majority's reasoning may be extended to any employer-owned communications devices or systems, including text messages on employer-owned smart phones.
Under Purple Communications, employees have the right to use company-owned email systems for the full spectrum of concerted activities for mutual aid or protection protected by Section 7 of the National Labor Relations Act on nonworking time. Such concerted activities include not only traditional union organization, but also discussing wages and other terms and conditions of employment with coworkers. Protected concerted activities also include communications between employees and unions or attorneys through employer-owned email systems.
Member Johnson's 32-page dissent characterizes the majority ruling in Purple Communications as a "sweeping new rule that interferes with an employer's well-established right to restrict employee use of its property based on convenience." Given its far-reaching impact and complete reversal of precedent, the Purple Communications decision will likely be appealed to a federal court. Meanwhile, however, the NLRB and its Administrative Law Judges are free to apply Purple Communications to employers that place over broad content-based restrictions on communications through company-owned email, including bans on all nonworking time email communications.
Employers should promptly examine their communications policies for compliance with the new standard in Purple Communications. Communications policies that either expressly prohibit protected concerted activity or potentially chill such activity are subject to being challenged as unfair labor practices. The NLRB will likely construe communications policies as strictly as social media policies, finding any ambiguous language to potentially chill the exercise of Section 7 rights.
Employers retain the right to prohibit employees from using employer-owned devices and email systems during work time and for unlawful purposes, such as harassment of co-workers, defamation, and trade secret misappropriation. A close review of communications policies by experienced counsel will ensure that legitimate business interests are served without violating the expanding scope of protected Section 7 activities.
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